Thoughts on Life, Love, Politics, Hypocrisy and Coming Out in Mid-Life

Monday, April 30, 2018

An Open Letter to Justice Anthony Kennedy

If one looks at Donald Trump's picks for cabinet positions, most have been frightening and have involved ideologues and those not competent for their positions. A number of his would be judicial appointments have been labeled "unfit" by the American Bar Associations. Thus, nothing is more frightening than the prospects of Donald Trump nominating a second justice to the United States Supreme Court should Justice Anthony Kennedy retire as some rumors have suggested might occur. This would be a tragedy for the rule of law and would literally threaten the rights of minorities of all stripes and invite an impermissible intertwining of right wing Christian hate and bigotry into the nation's laws. An open letter by the Editorial Board of the New York Times pleads with Kennedy to remain in his post through next January to save the country and the court. I hope Kennedy listens to this plea. Here are highlights of that letter:

Dear
Justice Kennedy,

As
you have no doubt heard, rumors of your impending retirement are, for the
second year in a row, echoing around Washington and across America. While you
and your colleagues on the Supreme Court were listening to the final oral
arguments of the term in recent days, those rumors were only growing more
insistent.

How
can we put this the right way? Please don’t go.

Sitting
between the four liberal justices and the four conservatives, you are the most
powerful member of the most powerful court in the country, as you have been for
at least a decade. Your vote, more than that of any other justice, has
delivered landmark legal victories for Americans of all political stripes, from
gays and lesbians seeking equal rights to African-American college students
seeking a better education to deep-pocketed corporations seeking to spend more
money influencing politics.

You
have sent mixed signals about your intentions, but that hasn’t stopped
Republicans in Congress from referring to your departure as a done deal.

[T]his
moment is about so much more than partisan jockeying. We can’t know what is in
your heart, Your Honor, but we do know what your departure right now would mean
for the court, and for the nation. It would not be good.

[H]ere
are two ways to think about this decision: The safeguarding of your legacy, and
the safeguarding of the Supreme Court itself.

Your
record is more conservative than liberal, but there’s no question that you are
less of an ideologue than anyone President Trump would pick. How do we know?
Look at his first nominee, Justice Gorsuch. Perhaps you were comforted by this
choice — a well-qualified judge who clerked for you, and who would have been on
any Republican’s short list. But Justice Gorsuch has already made it clear that
while he’s a fan of individual liberty, at least in some cases, he is unlikely
to go to great pains to protect your most cherished values — equality and human
dignity.

[D]id
you spend a lifetime honoring and upholding the Constitution and the values of
civility and decency in American public life only to have your replacement
chosen by Donald Trump?

Do
you want to give your seat to a president whose campaign and administration are
under criminal investigation, whose closest aides have been indicted or have
pleaded guilty to federal crimes?

There
is also the institutional legitimacy of and public respect for the nation’s
highest court, which we know you cherish even beyond your own legacy. Right now
that legitimacy is eroding. The audacious decision by the Senate majority
leader, Mitch McConnell, to hold a court seat hostage and use it as an
electoral tool “places the court in a position of real institutional peril, . .
. .

You
know as well as anyone that the Supreme Court’s authority depends on public
confidence. When that fails, the consequences can be dire.

This
is where you come in, Justice Kennedy. You’re a conservative from a time when
conservatism was a more or less coherent political philosophy, not a tribal
identity. You’re a believer in free markets and individual liberty, and also in
human rights and equal justice. A defender of the rule of law, of civility and
decorum — those time-honored values now desecrated daily by the current
inhabitant of the Oval Office.

The
American people are desperate for someone who is not polarizing, and your
continued service would be an encouraging sign to them that the court can still
operate outside politics. It could also be a model for future justices, though
we’re not holding our breath. If you leave, the dam breaks.

We
realize this isn’t an entirely fair request. Every 81-year-old, especially
those who have devoted their lives to the service of their country, should have
the freedom to retire without worrying that the nation’s future may hang in the
balance. But this is the world we live in.

By
stealing the seat [of Merrick Garland] for short-term political advantage, Mr.
McConnell has inflicted institutional damage from which the court, and the
Senate, may never fully recover.

This
is your court, Justice Kennedy. It is facing an institutional crisis, and it
needs you.

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Out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others.
In the career/professional realm, I am affiliated with Caplan & Associates PC where I practice in the areas of real estate, estate planning (Wills, Trusts, Advanced Medical Directives, Financial Powers of Attorney, Durable Medical Powers of Attorney); business law and commercial transactions; formation of corporations and limited liability companies and legal services to the gay, lesbian and transgender community, including birth certificate amendment.

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